I don’t know the right answer on abortion in America. But I do know, based on the oral arguments recently heard by the Supreme Court regarding Mississippi’s abortion law, that our country has problems that cut deeper than the specifics of any abortion law.
The out-of-the-box role the Founders had in mind for the Supreme Court—basically a check on the other branches of government consistent with the blueprint laid down in the Constitution—did not last long. Almost from the get-go, the Court claimed additional authority for itself to strike down laws (Marbury v. Madison, 1803) with the doctrine of judicial review.
In the years since, the Court has used its power to wrestle with Americans over how their country should work. The Court once affirmed the institution of slavery (Dred Scott v. Sanford, 1857), and later pulled a reluctant public by the ear away from segregation (Brown v. Board of Education, 1954) after earlier endorsing the practice (Plessy v. Ferguson, 1896).
But whether leading public opinion or trailing it, the Court assumed a role not conceived by the Founders—that, in the absence of common agreement, the Court would decide how Americans would live. Should we be a slave-owning nation? Should our schools be segregated? Should same-sex marriages be legal? In case after case, the Court took it upon itself to determine a solution to a social issue, seeing the need for a nationwide answer to a contentious question once left to each state.
And that leads us to abortion laws. They are a religious issue. They are a moral issue. They are issues intimately tied to both liberal and conservative politics. They are states’ rights issues. They are women’s health issues and societal-burden issues. They are socio-economic issues, as the population of women who seek abortions is skewed by economics and race. Abortion is healthcare or it is murder.
In 1973, the Court tried to pry Americans from each others’ throats over abortion via Roe v. Wade. When the case was first heard, 30 states had complete bans on abortion. Sixteen states had full bans except for rape, incest, or threats to the mother’s health. Three states allowed most abortions, but only for residents. Only New York allowed abortions for out-of-state women, but prohibited them after 24 weeks unless the mother’s health was in danger.
With Roe, the Court took it upon itself to create a kind of compromise: During the first trimester, a state cannot regulate abortion beyond requiring the procedure be performed by a licensed practitioner. During the second trimester, a state can regulate abortion if the regulations are reasonably related to the pregnant woman’s health. During the third trimester, a state’s interest in protecting the fetus outweighs the woman’s rights, so a state can prohibit abortion unless it is necessary to save the mother’s life or preserve her health. Roe v. Wade did not legalize abortion, but changed the way states can regulate abortion.
Roe also held that abortion was a constitutional right, a claim that is the central point of disagreement for many who oppose the Court’s ruling. Some critics acknowledge that while the Court tried to do its best to resolve an impossible problem, the Constitution nowhere mentions the right to abortion. They argue the Court should never have written, via Roe, a law that Congress would not.
The proposed basis of the right to abortion rests in the 14th Amendment, an amendment passed to guarantee equal protection under law to freed slaves. The Roe Court’s bastardization of the 14th Amendment may prove the basis for the ruling’s demise. Even one of the Court’s greatest liberal justices, Ruth Bader Ginsburg, knew Roe was bad law. She wrote, “Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.”
Roe‘s other shortcoming was its holding that states could not institute blanket abortion bans in the first 24 weeks of pregnancy. The number was something of a compromise; Justice Harry Blackmun, the author of the majority opinion in Roe, once called the line arbitrary. Debating where to draw the line for abortion rights—at Roe‘s 24 weeks or Mississippi’s 15—raises the question of why a line exists at all. Aren’t the legal interests—aside from religious or moral ones— basically the same throughout a pregnancy?
In subsequent cases, Planned Parenthood v. Casey, 1992, and Whole Woman’s Health v. Hellerstedt, 2016, the Court modified Roe in response to states’ imposition of laws that attempted to limit abortion by making the process complicated, expensive, or cumbersome. In Casey and Hellerstedt, the Court held that “such laws could not impose an undue burden” on the woman seeking an abortion—meaning a law that has “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”
While much of abortion jurisprudence is unclear, three things are clear. First, Roe always allowed for some regulation of abortion. Second, if the Court can reverse itself on slavery and segregation, it can reverse itself on abortion. Third, almost no one thinks Roe forever settled the issue of abortion in America. Americans will ever ask, and answer, the question anew.
The current vehicle for asking and answering is Dobbs v. Jackson Women’s Health Organization, a case that concerns a 2018 Mississippi law banning almost all abortions after 15 weeks. Its version of regulation is a direct challenge to Roe‘s (Texas’s latest attempt to restrict abortion, SB8, will be heard separately). The Court heard oral arguments in Dobbs in late November. A decision will be announced in three to six months, and will likely have a greater effect on the results of the midterm elections than any other factor.
The Court has options. It could decide to keep Roe as it is and tell Mississippi to get with the program. It could accept Mississippi’s abortion law and thereby upend Roe. Or, it could ignore Mississippi’s law and re-write Roe with new rules for each trimester. Any of those three possibilities would be consistent with the way the Court has acted for some 220 years.
What is troubling are some of the statements made during oral arguments by the so-called liberal justices, particularly Justice Sotomayor. Sotomayor went as far as to question whether the legitimacy of the Court itself could endure if it overturned abortion rights. “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” She accused Mississippi of moving forward with abortion restrictions only “because we have new justices,” referring to the Court’s three Trump appointees, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. “If people actually believe that it’s all political, how will we survive?” Sotomayor continued.
The other liberal justices, Stephen Breyer and Elena Kagan, were equally vehement in their support for abortion as a constitutional right. Alongside Sotomayor, they continually claimed that Roe was “settled law” and was thus somehow above reexamination. It was left for Justice Kavanaugh to point out—known to any first year law students in attendance—the long line of celebrated cases in which the Supreme Court had overruled precedents. If the court had adhered to stare decisis in those cases, he says, “the country would be a much different place.” Kavanaugh finished his lecture by noting that every current member of the Court had voted to overrule constitutional precedents in various past cases.
Since Congress has steadfastly refused to legislate on these issues for decades, the Court has been left to set rules in matters of religion, public policy, and individual rights. The compromises and weaknesses in Roe exist because of Congress’s failure to act. Any decision the Court has made in the past has been, and any decision it makes in the present case will be, imperfect. But that’s only the beginning of the problem.
The deeper problem is the Court has taken such an overtly political, partisan turn. Sotomayor in particular embarrasses herself with a fan-fiction-quality take on settled law, and her claim that a decision that does not fit her political beliefs will destroy the Court’s legitimacy. She believes in precedent when she agrees with it and does not believe in it when that suits her better. She has suggested the last president’s appointments to the Court are somehow in the wrong because their mere presence allows Mississippi to challenge Roe. Americans have been trained to claim the system is unfair anytime a court decision or an election goes against their personal preference. Shame on Sotomayor for fanning those flames by suggesting her fellow judges are biased— and she alone is not.
Sotomayor is a zealot who puts politics above justice. In that sense, it is unclear that Sotomayor actually understands how the Supreme Court is supposed to work. If Roe falls, its supporters may wish to examine the role Sotomayor’s poor defense of the ruling played in its collapse.
Peter Van Buren is the author of We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People, Hooper’s War: A Novel of WWII Japan, and Ghosts of Tom Joad: A Story of the 99 Percent.
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